Supreme Court of California

Jessie SENERIS and Jesus Seneris, husband and wife, Plaintiffs and Appellants, v.

Dr. George S. HAAS, Dr. James S. West, and Methodist Hospital of Southern

California, a corporation, Defendants and Respondents.

L. A. 23750.

Decided: December 23, 1955

Pollock & Pollock, Edward I. Pollock, David Pollock and William Jerome Pollack,

Los Angeles, for appellants. Hibson & Horn, Theodore A. Horn, Edward M. Raskin,

Samuel A. Rosenthal, Leonard G. Ratner, Los Angeles, Boccardo, Blum & Lull, San

Jose, Ashe & Pinney, San Francisco, Richard L. Oliver, Ben C. Cohen, Lionel

Campbell, Rose, Klien & Marias, Los Angeles, Elmer Low, Pasadena, Marion P.

Betty, Eugene E. Sax and Myron L. Garon, Los Angeles, as amici curiae on behalf of

appellants. Hunter & Liljestrom, Harold J. Hunter, De Forrest Home, Reed & Kirtland

and Henry E. Kappler, Los Angeles, for respondents.

Plaintiffs, Jessie and Jesus Seneris, husband and wife, appeal from judgments of

nonsuit entered in favor of all three defendants, Dr. George S. Haas, Dr. James S.

West, and Methodist Hospital of Southern California, in an action for damages for

malpractice.

On March 22, 1951, plaintiff Jessie Seneris, 37 years of age, and the mother of four

children, was admitted to defendant Methodist Hospital as a routine obstetrical case.

Some nineteen hours after her admission, plaintiff was administered ether and other

drugs which rendered her unconscious (618, 619, Pl.Ex. 1). The record shows that
defendant hospital, through one of its nurses, selected defendant Dr. West, one of a

panel of six anesthesiologists, to administer a spinal anesthetic to Mrs. Seneris.

Within approximately twelve minutes after the anesthetic was administered (Pl.Ex. 1),

plaintiff gave birth to a daughter. The delivery was spontaneous and uncomplicated.

Plaintiff awakened the following morning and complained that ‘she couldn't move her

legs; that she had pain in her back, neck, head, arms and wrist.’ Plaintiff left the

hospital five days after the birth of the baby, but returned for examination and X-rays.

She was then given a back brace and crutches and later a leg brace. Within two or

three months she regained the use of her right leg but at the time of the trial was still

suffering pain in her left hip and had limited use only of her left leg.

Plaintiffs brought this action on the theory that Dr. West was negligent in

administering the spinal anesthetic; that Dr. Haas, the obstetrician, was liable in that

he knowingly permitted Dr. West to administer the spinal anesthetic; and against the

hospital on the theory that it was liable under the doctrine of respondent superior.

Plaintiffs contend that all three defendants are liable under the doctrine of res ipsa

loquitur; as joint venturers; and because they failed to call in a neurosurgeon and

arrange for a laminectomy after discovering the paralysis.

Plaintiffs contend that the trial court committed error in granting nonsuits in favor of

all three defendants in view of the evidence adduced; that error was committed in

excluding the expert testimony of Dr. Webb, now deceased, offered by them in the

field of anatomy, biology, pathology, histology and causation. (Dr. Webb's testimony

was rejected on the ground that he did not qualify as an expert on the standard of

care.) It is also contended that the doctrine of res ipsa loquitur is applicable under the

facts here present. We are compelled to agree with these contentions.

Evidence:

The following sketch is taken from Plaintiffs' Exhibit 5 and is set forth to illustrate the

testimony of defendant doctors on which plaintiffs rely to show that the motions for

nonsuit were improperly granted.

In contending that the spinal cord was injured, plaintiffs rely on a hospital record

(Pl.Ex. 2) which contained the following written report made by Dr. Nathan E. Carl,

defendant hospital's staff neurologist: ‘The patient's (Mrs. Seneris) subjective

complaints are seemingly warranted on the basis of the positive neurological findings.

There is sensory loss, motor weakness and reflex change in the left leg, indicating

cord damage on the left in the lumbar region. Patient's responses are constant and are

not indicative of functional disorder.’ (Emphasis added.) Plaintiffs argue that had the

spinal anesthetic been administered in the position contended for by defendant West,

no damage to the cord (as distinguished from the nerves) could have resulted since the

cord is not present in that position.

Dr. Haas Testified as Follows:

‘Q. By Mr. Pollack (plaintiffs' counsel): What is the next important thing to watch out

for in the administration of a spinal anesthetic? A. The place or location of the

administration.

‘Q. Now, you are speaking of the various intervertebral interspaces that there are in

the spine; is that correct? A. That is correct.

‘Q. In connection with that, what is it that you have to watch out for with respect to

where you insert the needle? A. In giving a spinal anesthetic, it is of utmost

importance that you work in a region below the spinal cord itself. In administering a

spinal anesthetic, a landmark on the posterior of the patient's body is determined by

drawing an imaginary line between the crest of the ilium of the patient that is to

receive the spinal anesthetic. Below this line it is perfectly safe to work.

‘Q. And the reason for that, Doctor, is that the cord ends at the lower border of the

first lumber vertebra, usually? A. That is correct.

‘Q. So, in inserting a needle into the spinal canal, the important thing to do is to make

sure that you are below the end of the cord; is that right? A. That's right.

‘Q. Why is it that you want to avoid the cord? A. The cord is a very delicate

mechanism of the human body. It is an organ that we do not like to tamper with, one

that is very, very sensitive. For that reason, it is naturally understandable that you

would never work in that region where there is any possibility of working elsewhere.

‘Q. So, if a needle, a spinal anesthetic needle, was being inserted into the spinal canal

of a woman who was about to deliver a child, it would be bad practice, would it not,

to go into a vertebral space above the first lumbar vertebra; is that correct? A. That is

correct.

‘Q. Now, next to (and above) the first lumbar vertebra, you have the 12th thoracic

vertebra; is that correct? A. That's right.

‘Q. Actually, in general practice, you never go in above the second lumbar vertebra; is

that correct? A. Yes.’

Dr. Haas also testified that when due care and proper practice was followed

permanent paralysis did not follow. (100.) Dr. Haas' testimony also showed that Mrs.
Seneris, having had one successful spinal anesthetic, was medically presumed to be

non-allergic to such anesthesia. (101.)

Dr. West Testified as Follows:

‘However, if we put in a solution which is heavier than the relative weight of the

spinal fluid solution, the spinal fluid, if is heavier than that, it will tend, by gravity

alone, to go downward.

‘Now, in this technique, one of the three items which is used is a solution of 10 per

cent glucose, which increases the relative weight of the injected solution in relation to

the spinal fluid, so that we are taking advantage of what we know to cause this

solution to go down.

‘Now, in addition to that, the table upon which the patient is located is placed in a

slightly titled position so that we take advantage not only of the fact that the solution

is heavier than the spinal fluid into which it is placed, but we also by the position of

the table take advantage of this heavier solution, so that, once the solution is put into

the subarachnoid space, it goes down.’

‘Q. * * * Now, Doctor, ordinarily, when you are doing a spinal anesthetic, you like to

insert the needle below this point here (indicating on Pl.Ex. 5) and I am pointing to

the very tip of the conus medullaris; is that correct? A. Ordinarily, yes.

‘Q. And the reason for that is that you want to run no risk of running into the cord

proper; isn't that correct? A. It is a matter of some safety, yes. * * *

‘Q. If you enter opposite L-2, for example, you are below the cord? A. Yes.
‘Q. If you enter opposite L-1, the cord is there? A. The cord is still present, yes. * * *

‘Q. All right. Let's go to, say, T-12. What do you say about if you enter the spinal

canal in the interspace between L-1 and T-12. Would you point that out on the map

(Pl.Ex. 5), the interspace between lumbar one and thoracic 12? * * * A. Into this

space (indicating).

‘Q. Now, is there any danger there of coming in contact with the spinal cord? A. Yes.

‘Q. Isn't it for that reason that whenever you insert a needle in the spinal canal you try

to stay below L-1? A. Yes.

‘Q. Why is it that you do not want to strike the cord with your needle? A. Well, for

the same reason that I have no desire to strike any nerve with a needle, specifically.

‘Q. What is that reason? A. It may damage the nerve.’

In answer to the question: ‘Would trauma to the cord cause paralysis?’ Dr. West

answered ‘Yes.’ In answer to the question: ‘Trauma to the cord or to the nerve roots

below the conus medullaris would cause paralysis, would it not?’ Dr. West answered:

‘It is impossible to cause trauma to the cord below the conus medullaris.’ Dr. West

testified as follows concerning his customary procedure in giving a spinal anesthetic:

That when he first went in to the delivery room, he told the nurse to turn the patient

over on her right side; that he then opened his anesthetic tray; that he then put on

sterile gloves; that there were four ampules of drugs on his tray one of procaine, one

of pontocaine solution, one of glucose solution, and one of ephedrine solution; that he

opened three of the ampules with a file across the narrow neck of each; that he then

drew a solution from each of three ampules into a syringe; that he then drew a
solution from the fourth ampule into a smaller syringe; that he next applied a sterile

solution to the patient's back; that he then placed a sterile drape sheet over the area

just painted with the sterile solution; that ‘I then palpate the bony promninences for

my landmarks'; that ‘I place my left hand on the patient's upper iliac crest (upper

border of the hipbone) * * *. Then I drop my hand from this palpated bony crest into

the midline of the back. * * * I (then) find that at this particular point my thumb is

either in contact with the spinous process of lumbar 4 or has actually fallen into the

interspace between lumbar 4 and 5. * * * At the space that I have located, keeping my

thumb in the interspace, I raise a skin wheal. * * * The purpose of that is to alleviate

any discomfort on the part of the patient when the subsequent injection is made. * * *

My skin wheal is now made. With my thumb still on this interspace, I pick up my

spinal needle and make my approach to the dura.’ Dr. West then testified that the

needle was hollow, that it had a stilet in it to keep it closed; that after the

subarachnoid space had been entered, the stilet was withdrawn; that then the syringe

was attached to the needle; that then the ‘free flow of spinal fluid’ from the needle

was observed; that he ‘then pick(ed) up my syringe, which has at this moment a total

volume of 3 cc's in it. I dispose of 2 cc's of the fluid’ leaving 1 cc. of volume in the

syringe; that he then ‘attach(ed) it to the hub of the needle and withdraw (sic) 1 cc of

spinal fluid into the syringe; that the syringe is then swirled to mix it, and the drug

with spinal fluid in it is injected into the canal’; that the needle was then withdrawn

and the anesthetic finished.

‘A motion for nonsuit may properly be granted ’* * * when, and only when

disregarding conflicting evidence, and giving to plaintiff's evidence all the value to

which it is legally entitled, indulging in every legitimate inference which may be

drawn from that evidence, the result is a determination that there is no evidence of
sufficient substantiality to support a verdict in favor of the plaintiff.' Card v. Boms,

210 Cal. 200, 202, 291 P. 190, 191; see also, Blumberg v. M. & T. Inc., 34 Cal.2d

226, 229, 209 P.2d 1; Golceff v. Sugarman, 36 Cal.2d 152, 153, 222 P.2d 665.

‘Unless it can be said as a matter of law, that * * * no other reasonable conclusion is

legally deducible from the evidence, and that any other holding would be so lacking

in evidentiary support that a reviewing court would be impelled to reverse it upon

appeal, or the trial court to set it aside as a matter of law, the trial court is not justified

in taking the case from the jury.’ In re Estate of Lances, 216 Cal. 397, 400, 14 P.2d

768, 769; see, also, Raber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574.' Emphasis

added; Palmquist v. Mercer, 43 Cal.2d 92, 95, 272 P.2d 26, 28; Warner v. Santa

Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12.

Summary:

A summary of plaintiffs' evidence shows that Mrs. Seneris entered the hospital in

good health and suffering from none of the complaints and difficulties with which she

awakened the day following the administration of the spinal anesthetic; that she had

previously had a spinal anesthetic from which she suffered no ill effects and so was

presumed, medically speaking, to be non-allergic thereto; that she had no disease or

condition which might have caused paralysis following a spinal anesthetic. The record

also shows that defendant Haas testified that the place in the spine where the

anesthetic was to be administered was an ‘important thing’ and of ‘utmost

importance’; that it was ‘safe to work’ below the end of the spinal cord; that it was

‘bad practice’ to go into the spinal canal above the first lumbar vertebra; that the

insertion of a needle above the first lumbar vertebra could cause cord damage; that in

general practice a doctor never went in above the second lumbar vertebra. Dr. West
testified that trauma to the cord would cause paralysis; that it would be ‘impossible to

cause trauma to the cord below the conus medullaris'; that it was his opinion that

plaintiff's (spinal) nerve roots had been affected by the anesthetic solution used by

him. Plaintiffs introduced in evidence hospital records which showed that Dr. West

arrived in the hospital delivery room at 9:00 p. m. and that two minutes later, at 9:02

p. m., the spinal anesthetic was completely administered. Dr. West's testimony shows

the various steps, in chronological order, taken in administering such an anesthetic.

Plaintiffs showed that Dr. West did not wash his hands prior to administering the

anesthetic to Mrs. Seneris. Plaintiffs introduced in evidence the written report of Dr.

Nathan E. Carl, defendant hospital's staff neurologist, wherein he stated that Mrs.

Seneris' condition ‘indicat(ed) cord damage on the left in the lumbar region.’

(Emphasis added.)

Plaintiffs contend that evidence shows that the spinal anesthetic was hurriedly and

negligently administered and that it was the proximate cause of Mrs. Seneris' injuries.

Defendant West contends that there is nothing* in the record to show that plaintiff

wife's injuries were caused by the anesthetic. This contention is disproved by the

testimony of Dr. Haas himself when he testified: ‘Q. By Mr. Pollack: Doctor, I want

to know, in the case of Mrs. Seneris, what is your opinion as to the level of the nerve

roots, this damage or injury to the well, it is all mixed up. Let me try it once more.

What I am trying to get at is that: The nerve roots (to be distinguished from the spinal

cord) have been affected, you say, by the anesthetic solution that you used; is that

correct? A. I think so. It is my opinion, yes.’ (Emphasis added.)

Dr. West later testified that ‘I should say that the nerve roots have been affected

below the level of my injection.’ He had previously testified that the solution he used

was ‘weighted’ and the table titled so as to be sure the fluid would ‘go down.’

From this evidence, it could have been legitimately inferred by the jury that plaintiff

Seneris' injuries were proximately caused from spinal cord damage caused by a spinal

anesthetic administered between the twelfth thoracic and the first lumbar vertebrae;

that a spinal anesthetic administered in that location was not good medical practice, or

the exercise of that care and caution expected of a practicing physician in that

community. A defendant's conduct must always be gauged in relation to all the other

material circumstances surrounding it, and if such other circumstances admit of a

reasonable doubt as to whether such questioned conduct falls within or without the

bounds of ordinary care then such doubt must be resolved as a matter of fact rather

than of law. Mosley v. Arden Farms Co., 26 Cal.2d 213, 217, 157 P.2d 372, 158

A.L.R. 872; Toschi v. Christian, 24 Cal.2d 354, 360, 149 P.2d 848; In re Estate of

Lances, 216 Cal. 397, 400, 14 P.2d 768; Raber v. Tumin, 36 Cal.2d 654, 656, 226

P.2d 574; Palmquist v. Mercer, supra, 43 Cal.2d 92, 95, 272 P.2d 26; Warner v. Santa

Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12. It follows, therefore that the trial

court erred in granting a judgment of nonsuit as to defendant West.

Applicability of The Doctrine of Res Ipsa Loquitur:

Defendants contend that the heretofore quoted testimony elicited from defendant

doctors is not sufficient, without applying the doctrine of res ipsa loquitur, to permit

plaintiffs to go to the jury. We are of the opinion that the evidence is sufficient, but

we are also of the opinion that the jury, under appropriate instructions, should have

been permitted to determine whether each of the conditions necessary to bring into
play the rule of res ipsa loquitur were present. Roberts v. Bank of America, 97

Cal.App.2d 133, 137, 217 P.2d 129.

Plaintiffs and defendants agree that the conditions to be met before the doctrine may

be applied are that the accident, or injury, must be of a kind which ordinarily does not

occur in the absence of someone's negligence; that it must be caused by an agency or

instrumentality in the control of the defendant; and that it must not have been due to

any voluntary action or contribution on the part of plaintiff. Ybarra v. Spangard, 25

Cal.2d 486, 489, 154 P.2d 687, 162 A.L.R. 1258; Baker v. B. F. Goodrich Co., 115

Cal.App.2d 221, 226, 252 P.2d 24; Burr v. Sherwin Williams Co., 42 Ca.2d 682, 687,

268 P.2d 1041.

Plaintiffs argue that it is a matter of common knowledge that a woman does not

ordinarily become permanently paralyzed following childbirth after having had a

spinal anesthetic administered as an incident thereto; that Dr. Haas testified that

‘ordinarily where due care (was) used and proper practice followed, permanent

paralysis (did) not follow’; that Dr. West testified that he had never had a case of

permanent paralysis due to sensitivity to a spinal anesthetic; that he had made four or

five thousand spinal punctures; that Dr. Carl's written report shows that it was his

opinion that plaintiff's injuries were due to spinal cord damage; that spinal cord

damage could be caused by a spinal anesthetic needle being inserted above the first

lumbar vertebra; that it was most important that the spinal anesthetic be administered

in a location below the conus medullaris, or the end of the spinal cord; that Dr. West

had completed the administration of the spinal anesthetic within two minutes of the

time of his arrival in the delivery room; that the anesthetic was administered by him

without having ‘scrubbed.’

Defendant West argues that paralysis may result from a number of causes other than

negligence in giving a spinal anesthetic; that in a certain percentage of cases paralysis

will result from spinal anesthesia without any negligence; that plaintiffs introduced no

proof that the practice used by him in administering the anesthetic was not the

desirable or standard practice; that it is of ‘no importance’ that he did not scrub since

he used sterile gloves; that plaintiffs introduced no proof that the spinal anesthetic

fluid was ever injected in Mrs. Seneris' spinal canal.

We said in Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 442, 247 P.2d 344, 347,

so far as the first requirement is concerned that the accident, or injury, must be of a

kind which ‘ordinarily’ or ‘probably’ does not happen in the absence of negligence

and that ‘In the La Porte (v. Houston) case, 33 Cal.2d (167), at page 169, 199 P.2d

(665) at page 666, we said, after assuming that defendants were in control at the time

of the accident, that ‘the applicability of the doctrine of res ipsa loquitur depends on

whether it can be said, in the light of common experience, that the accident was more

likely than not the result of their (defendants') negligence. (Citations.) ‘Where no such

balance of probabilities in favor of negligence can be found, res ipsa loquitur does not

apply.‘‘ In determining whether such a probability exists with regard to a particular

occurrence, the courts have relied both upon common knowledge and the testimony of

expert witnesses. See, for example, Cavero v. Franklin General Benev. Soc., 36

Cal.2d 301, 309, 223 P.2d 471; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 459,

460, 150 P.2d 436; Juchert v. California Water Service Co., 16 Cal.2d 500, 515, 106

P.2d 886; Judson v. Giant Powder Co., 107 Cal. 549, 561, 40 P. 1020, 29 L.R.A. 718

(48 Am.St.Rep. 146).’

We also said in Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d 436, 445, 247 P.2d

344, 348, that ‘Another factor which some of the cases have considered in applying

the doctrine is that the defendant may have superior knowledge of what occurred and

that the chief evidence of the cause of the accident may be accessible to the defendant

but inaccessible to the plaintiff. See Ybarra v. Spangard, 25 Cal.2d 486, 490, 154 P.2d

687, 162 A.L.R. 1258; Mudrick v. Market Street Ry. Co., 11 Cal.2d 724, 731-732, 81

P.2d 950, 118 A.L.R. 533; Anderson v. I. M. Jameson Corp., 7 Cal.2d 60, 64, 59 P.2d

962; Smith v. O'Donnell, 215 Cal. 714, 722, 12 P.2d 933; Kenney v. Antonetti, 211

Cal. 336, 339, 295 P. 341; Connor v. Atchison T. & S. F. Ry. Co., 189 Cal. 1, 5, 207

P. 378, 22 A.L.R. 1462; O'Connor v. Mennie, 169 Cal. 217, 225-226, 146 P. 674;

Steele v. Pacific Elec. Ry. Co., 168 Cal. 375, 378-379, 143 P. 718; Housel v. Pacific

Elec. Ry. Co., 167 Cal. 245, 249-250, 139 P. 73, 51 L.R.A., N.S., 1105

(Ann.Cas.1915C, 665); Wyatt v. Pacific Elec. Ry. Co., 156 Cal. 170, 174 103 P. 892.

* * *’

This factor is peculiarly applicable, as well as necessary, in the type of situation we

have here where a patient suffers injury while unconscious and in the care and

custody of the defendant, or defendants.

It would appear that plaintiffs have made out a prima facie case by both medical

testimony and common knowledge that the injuries suffered by Mrs. Seneris are not

such as usually occur in the circumstances without negligence on the part of someone.

Defendant West's assertions to the contrary are matters for the finders of the facts.

Apparently Mrs. Seneris was unconscious at the time the spinal anesthetic was

administered. Defendant West contends that her condition could have been caused by

a number of causes other than negligence in giving the anesthetic. There is no doubt
that when Mrs. Seneris went to the delivery room she was in good health. We said in

Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 690, 162 A.L.R. 1258, that ‘Every

defendant in whose custody the plaintiff was placed for any period was bound to

exercise ordinary care to see that no unnecessary harm came to him and each would

be liable for failure in this regard.’ We also said that ‘where a plaintiff receives

unusual injuries while unconscious and in the course of medical treatment, all those

defendants who had any control over his body or the instrumentalities which might

have caused the injuries may properly be called upon to meet the inference of

negligence by giving an explanation of their conduct.’ We also said in Summers v.

Tice, 33 Cal.2d 80, 86-87, 199 P.2d 1, 4, 5 A.L.R.2d 91, that ‘* * * a patient injured

while unconscious on an operating table in a hospital could hold all or any of the

persons who had any connection with the operation even though he could not select

the particular acts by the particular person which led to his disability.’ We said too

that the effect of the decision in the Ybarra case was that plaintiff had made out a case

when he had produced evidence which gave rise to an inference of negligence which

was the proximate cause of the injury; that it was then up to the defendants to explain

the cause of the injury. In order that a plaintiff be entitled to the benefit of the doctrine

of res ipsa loquitur, he need not exclude every other possibility that the injury was

caused other than by defendant's negligence (Prosser, Res Ipsa Loquitur in California,

37 Cal.L.Rev. 183, 197-198).

Defendant West argues that Mrs. Seneris has not met the third condition that the

injury must not have been due to any voluntary action or contribution on her part.

This argument stems from the testimony of one of plaintiff wife's doctors that she

suffered from a ‘psychic overlay factor’ (a type of hysteria induced by emotional

disturbance); and from Dr. West's assertion that Mrs. Seneris may have had a
‘sensitivity’ to the anesthetic solution of which it was said the paralysis might have

been a result. Plaintiffs proved that Mrs. Seneris had previously had an uneventful

spinal anesthetic; and by expert testimony of Dr. Haas that she was presumed,

medically speaking, non-allergic to spinal anesthesia. Plaintiffs also proved that Mrs.

Seneris, at the time of her admission to the hospital, was a strong and healthy woman;

that she suffered from no disease in which a spinal anesthetic would be contra-

indicated.

In Baker v. B. F. Goodrich Co., 115 Cal.App.2d 221, 229, 252 P.2d 24, 29, it was

said: ‘Where the evidence is conflicting or subject to different inferences, it is for the

jury, under proper instructions, to determine whether each of the conditions necessary

to bring into play the rule of res ipsa loquitur are present. Roberts v. Bank of America,

97 Cal.App.2d 133, 137, 217 P.2d 129.’ Barham v. Widing, 210 Cal. 206, 291 P. 173;

Moore v. Belt, 34 Cal.2d 525, 212 P.2d 509. The conclusion that negligence is the

most likely explanation of the accident, or injury, is not for the trial court to draw, or

to refuse to draw so long as plaintiff has produced sufficient evidence to permit the

jury to draw the inference of negligence even though the court itself would not draw

that inference; the court must still leave the question to the jury where reasonable men

may differ as to the balance of probabilities (Res Ipsa Loquitur in California, Prosser,

37 Cal.L.Rev. 183, 194-195). The inference of negligence is not required to be an

exclusive or compelling one. It is enough that the court cannot say that reasonable

men could not draw it. Bauer v. Otis, 133 Cal.App.2d 439, 284 P.2d 133. The

existence of the conditions upon which the operation of the doctrine is to be

predicated is a question of fact and the right of the jury to find those facts must be

carefully preserved. Black v. Partridge, 115 Cal.App.2d 639, 646, 252 P.2d 760; Rose

v. Melody Lane, 39 Cal.2d 481, 247 P.2d 335; Knell v. Morris, 39 Cal.2d 450, 247
P.2d 352; Milias v. Wheeler Hospital, 109 Cal.App.2d 759, 241 P.2d 684. We

conclude, therefore, that plaintiffs' evidence is sufficient to submit to the jury, under

proper instructions, the applicability of the rule of res ipsa loquitur. Defendants

contend that the case of Engelking v. Carlson, 13 Cal.2d 216, 88 P.2d 695, is

controlling concerning the application of the doctrine of res ipsa loquitur to the case at

bar. While the two cases may be distinguished on their facts, we do not deem it

necessary to do so here as we have concluded that the doctrine is applicable to the

factual situation disclosed by the record in this case and any expression in the

Engelking case which may be contrary to this conclusion is hereby disapproved.

Defendants' reliance upon the rule set forth in the case of Ayers v. Parry, 2 Cir., 192

F.2d 181, 184, is misplaced. There, plaintiff suffered injuries following a spinal

anesthetic administered between the second and third lumbar vertebrae. Plaintiff had

been brought into the hospital acutely ill with an infection and with a temperature of

103.6 . An emergency operation was found necessary to alleviate an obstruction to the

common bile duct. Expert testimony showed there that plaintiff's condition was

known as a cauda equinal neuritis produced by the spinal anesthesia; that certain

nerve roots had been injured; that the anesthesia had produced an inflammation about

the spinal cord “that constricts and damages the nerves, * * * and which occurs due to

some unusual reaction on the part of the patient to that solution.” The court held that

the doctrine of res ipsa loquitur was not available to the plaintiff under the

circumstances. Whether or not we agree with the holding in the New Jersey case, it is

apparent from further language of that court that the case is easily distinguishable

from the one under consideration. The court said: ‘When the expert testimony offered

by the plaintiff ascribes the cause to the toxic quality of the injected drug as

distinguished from the negligence of the anesthetist, that evidence is binding upon the
court and the jury would not be permitted to speculate to the contrary.’ The court also

said: ‘Nor is the doctrine available in a case based upon want of skill in diagnosis,

method or manner of treatment. Here, the process of treating the nerve roots by a drug

to produce anesthesia in an operation to remove an obstruction to the common duct

certainly requires technical knowledge and skill. Because the unfortunate

consequences suffered by plaintiff in themselves do not as a matter of common

knowledge and experience reveal lack of skill in the anesthetist, scientific opinion is

clearly necessary to throw light on the subject.’ (Emphasis added.) In the case under

consideration, plaintiffs proved, through the testimony of defendant doctors, that Mrs.

Seneris' injuries were not such as usually happened when due care and proper practice

were observed. In a malpractice case, plaintiff may make out a prima facie case

through the testimony of the defendant. Lawless v. Calaway, 24 Cal.2d 81, 90, 147

P.2d 604; Anderson v. Stump, 42 Cal.App.2d 761, 765, 109 P.2d 1027.

Evidence As It Relates To Dr. Haas:

Plaintiffs contend that Dr. Haas is also liable for Mrs. Seneris' injuries in that he

knowingly permitted Dr. West to administer the anesthetic negligently; in that he

failed to call in a neurosurgeon or other consultant; in that he failed to arrange for a

laminectomy to be performed on Mrs. Seneris; and under the doctrine of res ipsa

loquitur.

The record shows that Dr. Haas had made arrangements for Mrs. Seneris to have a

spinal anesthetic at the time of her delivery; that he had not arranged for Dr. West to

give it. The record further shows that Dr. Haas testified that when he arrived in the

delivery room he did not know whether Mrs. Seneris was conscious or not; that Dr.

West was standing by the patient's side removing the rubber gloves ‘that he uses when
he gives his spinal’; that at the time of his entry into the delivery room Mrs. Seneris

was lying on her back and a nurse was putting her legs into the stirrups preparatory to

the spontaneous delivery of the child. It is obvious from this evidence that the spinal

anesthetic had been completed by Dr. West prior to Dr. Haas' arrival in the delivery

room.

Defendant Haas contends that whether or not he was negligent in failing to call in a

neurosurgeon after discovering Mrs. Seneris' condition the following morning was a

matter requiring expert opinion as to the standard practice in the community and that

plaintiffs produced no such expert opinion. It is also argued that plaintiffs produced

no evidence to show that such a failure was in any way the proximate cause of

plaintiff Seneris' injuries or the cause of any aggravation thereof. These contentions

appear to be meritorious. Whether Dr. Haas' failure to call in a neurosurgeon to

examine Mrs. Seneris the following day constituted negligence depended upon expert

testimony as to what an ordinarily skilled physician practicing in that vicinity, in the

exercise of due care and professional judgment, would have done under the

circumstances. Bickford v. Lawson, 27 Cal.App.2d 416, 421-422, 81 P.2d 216.

Plaintiffs' further contentions with respect to Dr. Haas fail for the same reason: that no

expert evidence was produced to show that Dr. Haas' failure to call in a neurologist in

any way contributed to Mrs. Seneris' condition.

Evidence As To Defendant Hospital:

Plaintiffs' first contention is that defendant hospital is liable under the doctrine of

respondeat superior for the negligence of Dr. West in administering the spinal

anesthetic to Mrs. Seneris.

Mr. Hoefflin, administrator of defendant hospital, testified as follows concerning the

relationship between the hospital and Dr. West: That Dr. West was one of six

anesthesiologists on the hospital staff; that these anesthetists were appointed by the

board of directors of the hospital after having been approved and selected by the

members of the medical staff (composed of doctors); that the six anesthestists

constituted the medical staff of the Department of Anesthesiology ‘and their services

were available to the members of the staff. Uniquely, they had an agreement among

themselves in order to provide good anesthesia coverage to cover the hospital on a 24-

hour basis by themselves. Inasmuch as there were six, as I recall, they would cover on

a 24-hour basis one night themselves in six as a person on first call, and another

person on second call and third call, right down the line, which meant that one man

would ordinarily be statying in the hospital after he finished his anesthesia work in the

regular scheduled hours in order that any emergency surgery that came into the

hospital or any obstetrical case would have anesthesia coverage there’; that the

anesthetists are under the control of the medical staff; that no member of the board of

directors has anything to do with them; that the anesthetist himself billed the patient

for the anesthetic given by him; that the hospital furnished to the anesthetist the

medications given, the supplies, needles, nursing service, white clothes, gloves,

telephone service and a place to rest; that the anesthetist was required to make a

written report on each anesthetic given. Mr. Hoefflin further testified that if an

anesthetist was found to be unsatisfactory, the medical executive committee, as

governing board of the medical staff, recommended to the board of directors of the

hospital that action be taken.

Dr. West testified that he gave anesthetics at no hospital other than defendant

hospital; that he had no office of his own but took calls at his home; that it was
common practice for him to be summoned by a nurse at defendant hospital to

administer an anesthetic to an obstetrical case; that one of the nurses on the obstetrical

floor notified him to give the anesthetic to Mrs. Seneris. Dr. West testified that he did

not see Dr. Haas until after he had finished administering the spinal anesthetic to Mrs.

Seneris. Dr. West explained the call system to mean that when he had ‘first’ call, he

would give all the anesthetics necessary; that if he happened to be giving an

anesthetic when another was needed, the anesthesiologist on ‘second’ call would give

that one; that if he were not busy giving an anesthetic, he would give them all. Dr.

West testified that after Mrs. Seneris' difficulties arose he wrote a ‘document’ of

which he had copies made; that he presented one copy to the administrator of the

hospital; that this was not required and was a report other than the usual and required

anesthetic report to the hospital.

Plaintiffs assign as prejudicial error numerous questions asked of Dr. West and Mr.

Hoefflin to which objections were sustained. Plaintiffs contend that these questions

were relevant and material on the issue of agency and, it appears from the record, that

plaintiffs are correct. The questions all had a bearing on the relationship existing

between the hospital and the anesthetist, the amount of control exercised by the

hospital, and the extent of its right of control, and the trial court erroneously sustained

objections thereto. Unless the evidence is susceptible of but a single inference, the

question of agency is one of fact for the jury. Robinson v. George, 16 Cal.2d 238,

240, 105 P.2d 914. We said in Rice v. California Lutheran Hospital, 27 Cal.2d 296,

304, 163 P.2d 860, 865, that ‘It should be noted that a nurse or physician may be the

servant of a hospital, thus requiring the application of the doctrine of respondeat

superior even though they are performing professional acts. See Brown v. La Societe

Francaise, 138 Cal. 475, 71 P. 516; Inderbitzen v. Lane Hospital, 124 Cal.App. 462,
466, 12 P.2d 744, 13 P.2d 905; Bowman v. Southern Pac. Co., 55 Cal.App. 734, 204

P. 403.’

In Stanhope v. Los Angeles College of Chiropractic, 54 Cal.App.2d 141, 146, 128

P.2d 705, 708, the court said: “An agency is ostensible when the principal

intentionally, or by want of ordinary care, causes a third person to believe another to

be his agent who is not really employed by him.' s 2300, Civ.Code. In this connection

it is urged by appellant that ‘before a recovery can be had against a principal for the

alleged acts of an ostensible agent, three things must be proved, to-wit’ (quoting from

Hill v. Citizens Nat. Tr. & Sav. Bank, 9 Cal.2d 172, 176, 69 P.2d 853, 855): ‘(First)

The person dealing with the agent must do so with belief in the agent's authority and

this belief must be a reasonable one; (second) such belief must be generated by some

act or neglect of the principal sought to be charged; (third) and the third person in

relying on the agent's apparent authority must not be guilty of negligence. 1 Cal.Jur.

739; Weintraub v. Weingart, 98 Cal.App. 690, ’ (First) The person dealing with the

agent

‘An examination of the evidence hereinbefore referred to which was produced on the

issue of agency convinces us that respondent has met the requirements enumerated in

the Hill case. So far as the record reveals appellant did nothing to put respondent on

notice that the X-ray laboratory was not an integral part of appellant institution, and it

cannot seriously be contended that respondent, when he was being carried from room

to room suffering excruciating pain, should have inquired whether the individual

doctors who examined him were employees of the college or were independent

contractors. Agency is always a question of fact for the jury.’

Plaintiffs here through the questions permitted them showed that defendant West was

one of six anesthetists on defendant hospital's panel, or staff; that he gave anesthetics

for no other hospital; that all drugs and equipment used by him were supplied by said

hospital; that he had regular ‘on call’ duty at said hospital; that a hospital nurse

summoned him to give the anesthetic in question. It appears that this evidence is

sufficient to establish, prima facie, that defendant West was an agent of defendant

hospital. There is nothing in the record to show that plaintiffs should have been on

notice that defendant West was not an employee of defendant hospital and it can not

be ‘seriously contended’ that she was obliged to inquire whether each person who

attended her in said hospital was an employee or an independent contractor. It follows

that the trial court erred in taking the issue of agency from the jury.

Exclusion Of Expert Testimony Offered By Plaintiffs:

Plaintiffs contend that the trial court committed an abuse of discretion and prejudicial

error in excluding in its entirety the testimony taken by way of deposition of Dr.

Frank Webb, now deceased. Dr. Webb's testimony was offered for the bearing it

would have on anatomy, pathology, histology and causation as involved in the case at

bar. Dr. Webb's testimony was not offered as expert evidence on the proper and

requisite degree of skill and care used by practicing physicians in the community. See

Huffman v. Lindquist, 37 Cal.2d 465, 478, 234 P.2d 34, 29 A.L.R.2d 485, where Dr.

Webb's testimony was held properly excluded when offered to show the required

standard of care.

Dr. Webb's testimony was offered to show the location and cause of Mrs. Seneris'

paralysis; that her injury was traumatic and mechanical in nature; the means by which

the injury occurred; that the anesthetic needle had been inserted in the area opposite
the twelfth thoracic and first lumbar vertebrae; that the spinal cord had been

punctured and the cord injured by the anesthetic fluid.

Among Dr. Webb's many qualifications as an expert in the anatomical field, and as to

the cause of plaintiff wife's injuries, we note that he had seen about 1,000 spinal

cords; had examined from 100 to 150 cases involving injury to the spinal cord with

resulting paralysis; that in autopsies he had examined the spinal cord to determine the

location of an injury thereto; that he had examined the spinal cord both grossly and

miscroscopically; that he was able to trace and connect the history of paralysis to an

injury to the spinal cord; that he had treated, advised and consulted many patients

suffering from disease, injury or damage to the spinal cord.

In Agnew v. City of Los Angeles, 97 Cal.App.2d 557, 565, 218 P.2d 66, 73, where

the court reversed a judgment because the trial court had erroneously excluded the

testimony of one Dr. Andrews, it was said that ‘the court effectively denied plaintiff a

fair opportunity to prove her case.’ It was there held that ‘To qualify a witness as a

medical expert it must be shown that the witness (1) has the required professional

knowledge, learning and skill of the subject under inquiry sufficient to qualify him to

speak with authority on the subject, and (2) is familiar with the standards required of

physicians under similar circumstances. Moore v. Belt, 34 Cal.2d 525, 532, 212 P.2d

509; Sinz v. Owens, 33 Cal.2d 749, 753, 205 P.2d 3, 8 A.L.R.2d 757; 32 C.J.S.,

Evidence, s 537, p. 261. Where a witness has disclosed sufficient knowledge of the

subject to entitle his opinion to go to the jury, the question of the degree of his

knowledge goes more to the weight of the evidence than its admissibility. Cloud v.

Market Street Ry. Co., 74 Cal.App.2d 92, 100, 168 P.2d 191; 10 Cal.Jur. 963; 2

Wigmore on Evidence, 3d Ed., 641; 31 C.J.S., Estates, ss 86, 87, 88, pp. 99-101. The
qualification of an expert is ordinarily a matter addressed to the sound discretion of

the trial court, and its ruling will not be disturbed on appeal unless a clear abuse is

shown. Sinz v. Owens, 33 Cal.2d 749, 753, 205 P.2d 3, 8 A.L.R.2d 757; Mirich v.

Balsinger, 53 Cal.App.2d 103, 114, 127 P.2d 639. The determinative test as to

whether the trial court properly exercised its discretion is whether the witness has

disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury.

Valdez v. Percy, 35 Cal.App.2d 485, 492, 96 P.2d 142; Hutter v. Hommel, 213 Cal.

677, 681, 3 P.2d 554; Pierce v. Paterson, 50 Cal.App.2d 486, 491, 123 P.2d 544;

Mirich v. Balsinger, 53 Cal.App.2d 103, 115, 118, 127 P.2d 639; 32 C.J.S., Evidence,

s 537, p. 261.’

In addition to the specific qualifications heretofore set forth, Dr. Webb was a

physician and surgeon licensed in California since 1920. He had been in private

practice in New York; had been in charge of railroad employees hospital where he

had treated men paralyzed because of injury to the spinal cord. Dr. Webb had also

taught anatomy and histology in the University of Southern California medical school

as well as in its dental college. Dr. Webb had been autopsy surgeon for the County of

Los Angeles for over thirty years prior to his death.

It appears to us that the trial court clearly abused its discretion in excluding Dr.

Webb's deposition and ‘effectively denied plaintiff a fair opportunity to prove her

case.’ Agnew v. City of Los Angeles, supra, 97 Cal.App.2d 557, 568, 218 P.2d 66,

73.

Other Contentions:
Plaintiffs charge all defendants with negligence in having failed to perform, or have

performed, a laminectomy upon Mrs. Seneris after her injuries were discovered.

Plaintiffs produced no expert evidence that a laminectomy was indicated in a case

such as the one under consideration other than an affirmative answer by Dr. West to a

statement made by plaintiffs' counsel that a laminectomy (a sort of picture window in

the backbone) is indicated where there has been cord damage. Plaintiffs produced no

expert testimony that such an operation would have alleviated Mrs. Seneris' condition.

Surgery and the necessity therefor, and effect thereof, is in most instances not a matter

of common knowledge.

Defendants contend that plaintiffs' pleading was not sufficiently broad to encompass

their claim that a laminectomy should have been performed. We do not agree.

Plaintiffs alleged that all defendants were negligent in regard to her ‘medical care.’

The pleading is sufficient under the general rule of liberal construction. Greninger v.

Fischer, 81 Cal.App.2d 549, 552, 184 P.2d 694.

It may be that on a retrial plaintiffs may be able to show by expert medical testimony

that such surgery was not only indicated but would have been performed as standard

medical procedure in the community.

The judgment of nonsuit as to defendant Haas is affirmed and as to all other

defendants it is reversed.

FOOTNOTES

FOOTNOTE. Aside from the doctrine of res ipsa loquitur which will be discussed

later.
CARTER, Justice.

GIBSON, C. J., and TRAYNOR and SCHAUER, JJ., concur. SPENCE, J., concurs in

the judgment.

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